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tv   Politics Public Policy Today  CSPAN  November 17, 2014 1:00pm-3:01pm EST

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initiative at the santa clara law school to produce a major research report addressing one of the major challenges facing the nation's criminal justice system, the need to ensure fair, full, and timely disclosure of information favorable to an accused in a criminal action. let me begin by welcoming all of you and expressing the heartfelt gratitude of nacdl and the foundation for criminal justice for your interest in this important issue. the right to a fair trial and due process of law is essential to the survival of a free society. no one wins when the process may contribute to the conviction of an innocent person. no one wins when the ultimate arbiter of the required standard of proof, guilt beyond a reasonable doubt by a jury of one's peers, are deprived of
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information that is favorable to the accused because all favorable information is critically relevant to that determination. the commitment of nacdl and the foundation for criminal justice to seek reform in the area of fair disclosure is one of the many areas in which we are working to make our criminal justice system fairer and more humane across a wide range of issues. in recent months we have worked to expand access to counsel, promote reform of the nation's indigent reform system, address ethnic and racial disparity in the criminal justice system, explore the impact of militarization of the nation's law enforcement infrastructure, rein in overcriminalization and promote the restoration of rights and status for those who have had a brush with the criminal law. all of this is a reflection of the core mission of america's criminal defense bar, liberty's
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last champions as we define ourselves. fairness is the bedrock principle of any society and of any judicial system. the reforms ensuring fairness proposed in material indifference are not ideals, but rather are realizable actions that can and should be employed. and so i am proud to welcome you to join with us in the release of this important report, a report that we hope will lead to the vital reforms essential to ensure a fair trial for every accused person. now, to introduce the extraordinary speakers we have gathered for this event and to moderate the discussion, i am pleased to invite nacdl's executive director norman riemer to the podium. >> good afternoon and thanks very much to our president,
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theodore simon, for the introduction and also for the support that's been provided for this project byn acdl and the foundation for criminal justice. material indifference, how courts are impeding fair disclosure in criminal cases, illuminates a problem that is widespread in the criminal justice system. to fully appreciate the importance of this report, we've assembled a distinguished panel including the authors, a prominent judge who has recognized the problem, and a practicing attorney who understands the depth of the challenge and took steps to address it during his tenure at the justice department. before i call upon our panelists, i want to put the problem of fair disclosure in the real world context of how america's criminal justice system actually works. in the nation's civil justice system when individuals, companies, or government
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entities bring lawsuits to address a wrong, to seek compensation for injury, or for a court order to enforce a right or prevent a harm, our legal system provides for early, open, and complete disclosure. parties can and must provide access to witnesses, disclosure of all documents, opportunities for pretrial depositions, and interrogatories and more. in fact, the failure to provide full and fair disclosure in a civil proceeding to ensure that there is no trial by ambush can lead to very severe monetary and other sanctions. but throughout most of the country in both state and federal criminal cases, disclowe smur to the accuse is minimal and highly limited. so we have a system that provides when what is at stake is usually a sum of money, there is full disclosure.
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but when a person's reputation, liberty, or even in some cases his or her life hangs in the balance, as it does in all criminal cases, discovery is very limited. this is extremely problematic for two reasons. first, because prosecutors bring criminal charges at the time and place of their choosing, they do so after having fully investigated the case, including interviewing all potential witnesses. they control the tempo and timing of arrest and indictment. they have exclusive control of the investigative reports. yet in most places prosecutors do not even have to reveal the names of witnesses unless and until those witnesses testify at trial nor do they have to provide the accused with access to the investigative reports that were compiled during the investigation. even statements of testifying witnesses often do not have to be revealed until late in the process, sometimes on the eve of
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trial or when the witness testifies. accordingly, favorable information, that is information that tends to support lack of guilt of the accused or mitigate wrongdoing or that which undermines the believability of witnesses and evidence that the prosecution will use to prove guilt, is within the sole and exclusive control of prosecutors unless and until they decide to provide it to the defense. another hallmark of the criminal justice system is that it is adversarial. prosecutors view cases through the prism of their own theories. prosecutors also seek to win cases, as they should, but that means that we have a system in which the party that brings the charge and is zealously committed to theory of prosecution must recognize information that undermines that theory and, further, even though the prosecutor has every incentive to win the case, he or she must also decide whether and
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when to disclose the very information that may undermine the prosecution they are bringing. more than 50 years ago, the supreme court in the brady case held that prosecutors must provide the helpful information that has been uncovered in law enforcement's investigation to the accused. failure to provide such information violates due process where the information withheld is material to guilt or punishment irrespective of good or bad faith. that is a core aspect of a fair trial, and well it should be. without that disclosure it may never be known and there can be no confidence in the outcome of the case. more than 300 dna exonerations, which have scientifically established the innocence of wrongfully convicted persons show that favorable evidence was withheld from the defense in an alarmingly high percentage of exonerations.
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but biological evidence that can definitively establish innocence is available in only a tiny, minuscule percentage of all criminal cases. most cases turn on the reliability or falability of human perception, the accuracy or inaccuracy of witness accounts, the truthfulness or falsity of testimony all within the vast gray zone of interpretation and inference. thus, in the majority of cases, the disclosure of helpful information to the accused is necessary if the jury is to make an informed, fair, and accurate assessment of the case. yet, too often information is not disclosed or too often when the accused learns of the helpful information, it's too late to make a difference in how the case is presented or prepared or considered by a jury. while there are certainly many documented cases of prosecutors who have willfully withheld helpful information, that is not
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what this report addresses. the problem is far more pervasive and insidious than simply a handful of bad apple prosecutors. there is an inherent tension between the adversarial system and the prosecutorial duty to disclose, and that is why, that is why the courts have the ultimate responsibility for ensuring fair, prompt, and effective disclosure of information helpful to the accused. and so the report we release today, material indifference, is an analysis of how courts fulfill that critical function. i'm pleased to introduce our first speaker, one of the authors of the report, professor kathleen "cookie" rodofi, she's a professor of law and the former director of the innocence project and a founder of the innocence network, an affiliation of organizations
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working to address wrongful conviction. another the professor's noteworthy work is preventable error, a report on prosecutorial misconduct in california from the period 1997 to 2009. in 2010 the professor launched the veritas initiative at santa clara law school. nacdl and the foundation for criminal justice are proud to partner with ver tas and santa clara this project. professor, i'm going to invite you up here to tell us about the project and how the courts are doing in ensuring fair disclosure in criminal cases. >> thank you. thank you. the fairness of a criminal trial depends on the ability of an accused to present a defense, and, of course, to present a defense depends on the access a
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criminal defendant has to favorable evidence that might exist in his case. the very fundamental nature of this principle was acknowledged by the u.s. supreme court 50 years ago when it decided the case of brady versus maryland. in brady the court held that a prosecutor has an obligation to disclose all favorable information that is material, and that failure to do so violates a defendant's right to due process. the american bar association reinforced this principle when it promulgated model rule 36.8d and that rule states that a prosecutor is required to make timely disclowe smur of all evidence or information that tends to negate guilt or mitigate punishment. so if this principle is so fundamental to our judicial system, how is it that there are so many wrongful convictions that have been -- that are the result of at least in part prosecutors withholding favorable information? in conducting this study, we
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focused on three questions. first, to what extent are courts consistent in the use and application of the materiality standard when deciding brady claims. second, what other issues or factors are underlying or influencing courts in resolutions of brady claims. and, third, to what extent is favorable evidence being withheld from the defense? you can see from the questions that our focus was more on the courts than on prosecutors. we wanted to better understand the role that judges play in shaping disclosure of favorable information in criminal cases. now, a note on the methodology. we looked at five years of brady decisions litigated in federal court. that was approximately 5,500 cases, and that included both cases originating in both state and federal court. we closely examined a stratified random sample of those cases, roughly 1,500 decisions.
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from those we identified 620 where the court's decision included an analysis of a brady claim. before i go any further i want to point out the inherent limitations of this study. a brady claim is an allegation by the defense that a prosecutor has withheld favorable information. the question of the extent to which prosecutors are withholding favorable information is actually impossible to answer. because brady violations by their very nature involve hidden or withheld information, and withheld information may never surface or become known. so we can only deview those cases where the withheld information is ultimately uncovered. so for purposes of the study, we examined the available information, and that body of information included or consisted of records of written opinions in cases where the defense learned information had been withheld, filed a brady
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claim, and the court issued a written opinion. those are the cases that form the basis of the study. and keep in mind that written opinions almost exclusively are found in cases that went to trial, and we know that across the country no more than 5% of cases go to trial. so that means that we have no information on 95% of the cases. this is important because it means the evidence that we did uncover in this study in all probability is just the tip of the iceberg. now, i mentioned a minute ago that the obligation a prosecutor has to disclose favorable evidence is derived from two sources. first, the due process clause of the united states constitution as or tick lated by the united states supreme court in brady versus maryland, and, second, the american bar association's rules of professional conduct. i will address each of these separately beginning with the brady analysis. under brady a prosecutor is required to turn over all favorable information that is
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material. the problem starts there. how do we define material evidence? to decide whether something is material, you have to first decide whether it is relevant. to determine relevance, you have to know the case, the whole case, and not just the prosecution's theory of the case. as justice stephens ex plains, quote, the significance of a piece of evidence can seldom be predicted accurately until the entire record is complete. yet, that is exactly what we expect prosecutors to do in applying a materiality standard pretrial without any sense of the perspective of the defendant. complicating the problem further is a prosecutor's dual role. prosecutor is a minister of justice, but importantly a prosecutor is also an advocate with the skills, the training, and ability to effectively prosecute cases and win convictions. what is inherently difficult about the prosecutor making the materiality decision is that he
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cannot be neutral within this context. yet when deciding whether information is material or relevant, that is exactly what prosecutors are expected to do, to set aside their role as advocates, pore through the evidence with an open mind, recognize the importance of the information to the defense, and make an objective decision about whether or not to disclose it. now, prosecutors, like the rest of us, are subject to what psychologists call confirmation bias. this means that we tend to evaluate what we perceive in a way that is consistent with what we know or believe. a prosecutor with the responsibility of ultimately proving the defendant's guilt in possession of police reports that support the defendant's guilt will perceive his universe through this lens and will tend to view information in a way that is consistent with that belief that the defendant is guilty. information that's inconsistent with that belief is likely to be
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viewed as not relevant. information not relevant is not material and, therefore, is not disclosed to the defense. so even the best intentioned prosecutor, and most prosecutors are, is not in a position to objectively decide materiality pretrial through the limit eed lens of the prosecution's theory. while most seek to do their job with integrity, this is not true of all prosecutors. for those inclined to practice close to the ethical line, the pliability of the materiality standard and its inconsistent application invite a kind of gamesmanship without regard to the guilt or innocence of the defendant. now, the dynamics and the psychological pressures affecting the materiality decision is not limited to the prosecutor. judges, too, have a kind of tunnel vision or confirmation bias that affects how they decide cases. in 1985 the u.s. supreme court
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justice harry blackmon acknowledged that, quote, the reviewing court faced with the verdict of guilty, evidence to support that verdict, and pressure to finalize judgments is in little better position to review the withheld evidence than the prosecutor. so it is not surprising that when the decisions we examine turned on the question of materiality, courts ruled in favor of the prosecutor 86% of the time. we identified 210 decisions where favorable evidence was either withheld or disclosed late. of those, courts found brady violations in 22 cases. in the remaining 188 decisions, the court decided the evidence was not material or the late disclosure did not materially prejudice the defendant. we also found that courts applied the materialality standard inconsistently. we did this by comparing cases
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that had -- where the undisclosed information was similar in factual context that were similar or nearly identical and found that courts were inconsistent in how they ruled on those cases. we also identified 65 decisions where prosecutors disclosed the information but disclosed it late. in 78% of the late disclosure cases, the prosecutor did not disclose the evidence until the trial was well under way leaving virtually no time to make use of the evidence at trial or to conduct an investigation that may have been prompted by a revelation of the new information. despite the obvious prejudice to a defendant in this situation, courts found that the late disclosure violated the defendant's due process rights in just 1 out of 65 cases. we also found that in some cases where prosecutors failed to disclose favorable information,
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courts excused the failure by imposing a due diligence rule on the defendant. shifting attention away from the prosecution's obligation to disclose favorable evidence to blaming the defendant's failure to discover the information on their own. and, finally, turning our attention to the courts' role in promoting compliance with the aba rule, unfortunately i can be very brief. they almost never expressly point to the prosecution's duty and responsibility to disclose favorable evidence as they are required to do by our profession, by aba rules of professional conduct. now, i'm going to turn the podium over to tiffany jocelyn and then we're going to open it up for questions, and i'm going to ask -- invite my co-author
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todd friese to participate. >> i'm going to give tiffany a more complete introduction. tiffany is my colleague. she plays a key role in nacdl's effort to prevent and oppose every criminalization, over federalization, and the erosion of intent requirements in criminal statutes. she has led numerous research projects for nacdl and most notably she played a key role in an extraordinary collaboration between nacdl and the heritage foundation when she co-authored "without intent: how congress is eroding the criminal intent requirement in federal law." i'm going to ask you to pick up on where the professor left off and take us through some of the report's findings and recommendations as well. >> thank you, norman. and before i begin, i just would be remiss if i didn't take a minute and say thank you to my
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co-authors. we'll hear from todd late r -- s the rest of this very distinguished panel. so as you just heard from cookie and as has been observed by many, the current permutation of brady has been -- become a hindrance to the defendant's access to favorable information. this is in part because the odds are against the defendant. prosecutors who withhold favorable information overwhelmingly have that decision affirmed by courts. even when undisclosed information surfaces, it is rare for the justice system to provide a remedy to the accused. moreover, as my colleague just discussed, there are several disturbing issues that arise in brady jurisprudence that can effectively relieve prosecutors
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of their disclosure obligations and deprive defendants' access to favorable information. courts frequently impose a due diligence requirement on the defendant. if the defendant could have found the evidence on his own, there is no brady violation. under a strict reading of brady, prosecutors can disclose very little without the risk of upsetting a conviction. this has not gone unnoticed. disclosure of all favorable information is not the policy of the department of justice, for example. strict judicial adherence to brady's materiality standard without regard to the integrity of the process has become a direct endorsement of nondisclowe smur of favorable information. that is what our study found. that is what our study supports. that is why this problem must be addressed on the front end. the brady standard used by courts following a conviction is not the rule by which
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prosecutors should measure their disclosure obligations in advance of a trial. rather, a standard requiring disclosure of all favorable information accompanied by penalties for noncompliance must be established. this sort of front end reform can be accomplished through passage at the state and the federal levels of a statute consistent with the aba model rule 3.8d that my colleague described. this requires amongst other things, disclosure of all favorable information. this reform could also be accomplished by the judiciary through changes to judicial rules and it can be accomplished by individual judges and individual defense attorneys through the request and granting of an order to disclose all favorable information. so let's discuss these mechanisms for reform a bit more. first, the ethical rule order. this is one way that defense attorneys and judges can
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actually obtain immediate results in a particular criminal proceeding while simultaneously encouraging broader changes and disclosure practices. defense attorneys, and i know there are many of them in this room, defense attorneys should request an order from the judge inner case requiring prosecutors to abide by rule 3.8d. and that order should also set forth sanctions for failure to comply. this is a direct mechanism for achieving reform and a way to counter the problems that have been identified in our study. further, the presumption that most lawyers will comply with ethical rule orders creates a reasonable probability that widespread use could have a deterrent effect on willful nondisclosure. of course, this approach is not a magic bullet. it will not solve the problem. in the end its effectiveness will still hinge on the
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willingness of courts to enforce the order with the proven unwillingness of courts to reverse convictions, one can only wonder about their willingness to hold prosecutors in contempt. so that brings me to a judicial rule change, another mechanism for reform discussed in the report. this is the type of reform that would address the arbitrary practices evidenced by the study. nationwide judicial branches are well positioned to take action to improve defendants' access to favorable information by amending court rules and policies to establish clear and consistent guidelines that track model rule 3.8d. the judiciary could decrease discovery gamesmanship and help restore balance to our justice system. in fact, some federal judges have already been calling for this sort of reform to the federal rule, rule 16. like nacdl, they have pushed
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unsuccessfully thus far to remove the materiality limitation from rule 16. the findings of the study lend hard evidence to what these supporters have been saying. the materiality standard disincentivizes the disclosure of favorable information. judicial rule changes at the state and federal levels would do much to promote a culture of compliance. of course, the most important and the strongest and most effective mechanism for reform of prosecutorial disclosure would come through legislation. legislation that sets forth a clear mandate for disclosure of favorable information as well as establishes comprehensive rules for the disclosure process. such legislation would have a systemwide impact. the fairness and disclosure of evidence act of 2012 exemplifies the sort of reform that this study demonstrates is critically needed.
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in direct response to the flawed prosecution of the late senator ted stevens, senators lisa murkowski and the late senator daniel inouye along with a bipartisan group of co-sponsors including senators michael enzi and mark be begich provided cle and meaningful standards to govern the prosecution's disclosure obligations. these senators saw what happened to their colleague and had the courage of their convictions to take action. this act, the fairness and disclosure of evidence act, would require prosecutors to disclose all -- that all information that may reasonably appear favorable to the defendant, effectively prohibiting the government from using brady's materiality standard to limit its disclosure obligation. the favorability of information alone is what would trigger a
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disclosure obligation. it does provide for exceptions in situations where disclosure could be detrimental to witness safety and the act includes a fair mechanism for seeking a protective order and exempts all classified information from disclosure. if legislation such as this were enacted, defendants would have increased access to favorable information and that would reduce brady litigation systemwide. the enactment of this legislation would also address the major problems evidenced by our study and discussed in our report including the common practice of late disclosure, the imposition of due diligence, and the frequency with which incent tiff deal information is not disclosed. the timing provisions would require disclosure before the entry of any guilty plea thereby reducing some of the pressure on innocent defendants to plead guilty. the weight of legislative action is greater than any other
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mechanism. it is an enforceable message that fair disclosure is requisite to fair process. this bill serves as a model for bringing about sensible and comprehensive discovery reform through legislation providing clear standards and ensuring compliance would remove much of the gamesmanship that is commonplace in the discovery process and result in less litigation and a fairer process. unfortunately, politics got in the way of the fairness of disclosure of evidence act of 2012. it was not passed, nor was it reintroduced to the current congress. rather, it is sitting on the cutting room floor waiting for another group of legislative heroes to come back and pick it up and move it over the finish line. and this legislation need not only take place on the federal level. federal action may be stalled right now, but state legislators across the country are poised to take this reform legislation and
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make it law in their own jurisdictions. the courts' reliance on materiality is a central inquiry in a brady violation claim has evolved in a standard by which prosecutors measure their disclosure obligations. until the materiality standard is removed as a barrier to fair disclosure and there are real consequences for withholding favorable information, the system will remain unaccountable to defendants. to bring clarity to this issue, provide prosecutors and courts with clear guidance, and ensure that those facing criminal charges are accorded the rights that they deserve, there needs to be reform. thank you very much. >> thank you very much, tiffany. before i introduce our next speaker, i do want to introduce todd. todd is a pro bono research attorney at the santa clara
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university school of law and operations director for the northern california innocence project. in his work for both of these entities he focuses on promoting policies to help prevent wrongful conviction and todd will be taking questions later on in the program. our next panelist will bring the prospeck at this of a practitioner and a former government official who attempted to tackle the issue. david w. og again is a prak titioner in at the wilmer hale law firm. with more than three decades as an experienced counselor and litigator, he focuses his practice on disputes with complex legal and policy dimensions. he has served several stints in government, including serving as deputy general counsel and legal counsel at the united states department of defense, chief of staff and counsel to former attorney general janet reno, assistant attorney general for the civil division, and most rintly as the deputy attorney general of the united states.
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while in that position in january 2010 he issued a memorandum known by many as the ogden memo which provided a response to a working group convened after the dismiss al of all charges against the late senator ted stevens. the dismissal which followed the revelation of serious disclosure violations by the prosecutors in that case. we are honored that mr. ogden has also written the forward to "material indifference." david ogden. >> thank you, norm. i feel very honored to have been asked to do it, and i'm really here because i think the authors and the organizations, nacdl and
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the veritas foundation are to be commended for taking on what is a set of recommendations, data and analysis on a subject that is extraordinarily important and difficult. i'm not in a position to specifically endorse the recommendations. i think they're serious recommendations, but i do think that this makes -- this study makes a great contribution. i do have the perspective of having dealt with these issues on the outside as defense counsel, as having tried to deal with them as i think norm accurately described my efforts as deputy attorney general when we dealt with some foundational and fundamental issues in the wake of the stevens prosecution. and the subject is important because it relates to the most fundamental criminal justice issue of all, the guilt or innocence of the accused.
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whether, when, and how the prosecution shares information with the defense also goes directly to the integrity of our legal system, the participants in it, and our institutions of justice. defense counsel have limited discovery tools at their disposal and lamentably in a typical case often have limited resources to conduct their own investigations. if the prosecution for whatever reason fails to disclose information favorable to the defense, this may well mean that it never comes to light. no greater harm can be done by our criminal justice system than conviction of innocent people. so the rules that govern the obligations to disclose are very important as are mechanisms to oversee and enforce them. the subject is not only important but it is also difficult. certainly material that is exculpatory of the accused or clearly undermines the credibility of a prosecution witness must be disclosed. but for information of more questionable apparent
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significance, many believe that it's appropriate for prosecutors to weigh a range of significant competing concerns before making disclosure. these concerns include the potential for harassment or harm to witnesses, the integrity of other ongoing investigations, or even national security concerns as was referenced. of course, whether information is actually favorable to the accused may be difficult to assess at any given moment and may depend on the eye of the beholder or the theory and the ways it might be utilized. where disclosure of more deba debatably information could bring about harm in these collar areas one may reasonably question whether it makes sense to mandate it. that's what makes it hard i think. so in 2009 the new leadership of the department of justice of which i was then a part confronted a set of concerns and tried to chart a new course. the attorney general had just made the difficult decision to abandon the failed senator ted
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stevens prosecution which had been plagued by and ultimately destroyed by violations of the brady doctrine. as deputy attorney general late in the spring, i put together a broad working group and directed them, quote, to undertake a thorough review of the department's policies, practices, and training related to criminal case management and discovery and to evaluate areas for improvement. and early in 2010 based on the work of that group we implemented changes in department policy meant to provide direction and resources to prosecutors in fulfilling their oge gathss to disclose favorable information. i make no claim to perfection for that work product or any other work product for which i have ever been responsible, but here is what we did. we set forth structured requirements to gather, review, disclose, and make a record of information potentially favorable to the accused. a comprehensive gathering, a comprehensive review, and a timely and appropriate disclosure and record keeping to
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allow an understanding of what had been done. direction also to remain vigilant throughout the case to obligations to make disclosures on an gone jog basis. we established a new training protocol, required every united states attorney to establish a policy relating to criminal discovery and provided dedicated resources in each district to assist prosecutors making this decision. perhaps notably given this study and the specific concerns about judicial standards. we reminded prosecutors that when competing considerations seem to counsel against disclosure, prosecutors may seek a protective order from the court addressing the scope, timing, and form of disclosures and that was specific direction that was given. in announcing these changes, we observed that federal prosecutors' duty is to seek justice and spoke about the truth seeking role of the prosecutor. we reminded the prosecutor that the government wins its points
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when evever justice is done. of it provides a margin of error in case the prosecutor's good faith determination of the scope of appropriate discovery is in error and we encourage prosecutors therefore to provide broad and early skor ri consistent with any countervailing considerations. i believe today as i did then and i think others on the panel believe that prosecutors try hard to live up to those standards, most of them. but, of course, they do have a dual role as has been alluded to. though they are ultimately seekers of juice tis and the truth, they are tasked as a primary matter with seeking convictions of those they believe are guilty and that, while an obviously very important function, does affect the lens or the prism through which they see issues. advocates may tend to view things through a particular lens. we tried by the steps we took to
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provide assistance to them, prosecutors, in making that decision accurately and remaining objective and i think we need to take very seriously and insist upon prosecutors' obligations to make utmost efforts to maintain their objectivity and to protect the innocent as tenaciously as they seek to convict the guilty. but given the dual role, it is unquestionably the case that judges have an indispensable obligation to oversee the system's fairness. given the stakes, there is no more important judicial role. so we should continue to focus on the shape of the legal rules that govern the process and the role of the courts in overseeing the way prosecutors fulfill their obligations. it's absolutely essential, and that's why i believe that this paper makes a significant contribution. thank you. >> thank you, and especially,
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david, thank you for vindicating my decisions as to the order of speaking because your final comments are a perfect segue to obtain a judicial perspective and to do that our final speaker is the honorable alex kosinski, chief judge of the united states court of appeals for the ninth circuit. judge kosinski was appointed to the circuit court by president reagan in 1985 making him at that time the youngest u.s. court of appeals judge in the country. he's originally an immigrant to the country from romania where he came to the united states when he was 12 years old. this is quite an american tale. prior to serving on the court of appeals he clerked for justice anthony kennedy when he was a judge on the ninth circuit and then for supreme court chief justice warren berger. during his nearly three decades on the court of appeals, judge kosinski has seen just about everything an appellate judge can see.
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in 2013 in the case of united states against olson, judge kosinski issued a powerful dissent, unfortunately it was a dissent, in which he wrote, and i quote, there is an epidemic of brady violations abroad in the land. only judges can put a stop to it. in this dissenting opinion he not only identified dozens of examples in which fair disclosure was thwarted, he also trained his keen analysis on the very subject of this report, which is the materiality standard. judge kosinski. >> thank you, norman. good afternoon, ladies and gentlemen. i'm going to spend a couple minutes talking about brady. we all know that brady is a rule that the supreme court has adopted and imposed on us, but except for those, and i think
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m there are many in these audience, who practice criminal law, it's probably hard to understand how brady differs in many ways from other rules, why it's such a bedrock, important principle of criminal justice. unlike civil cases where there is some mutual discovery, full discovery, and the transaction is in some ways open, criminal investigations are such that the prosecution has a huge advantages. if it's a physical crime, a murder, a robbery and the like, police secure the scene, they talk to all the witnesses. if there is evidence to be picked up, they take it, and by the time the defendant or his investigators comes around, there's nothing left to pick up usually. the prosecution is able to force witnesses to talk or at least take the fifth.
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they are able to give immunity. they are able to seize records, bank records and the like. if it is not a physical crime, if it's a kind of white collar crime, they can conduct investigations for years without the defendant even knowing about it, gather evidence, statements, and so on, and the defendant may have no clue that this is going on or very little information about it. so this is not a situation of, oh, some abstract rule that the prosecution should be fair, should play it fair. it is a fact that there's only so much evidence in a case, there's only so much witnesses or facts or pieces of evidence that can be presented to the jury, and most of it is picked up by the prosecution. it's just the way our system works. it's the only way the system works. so the supreme court in brady said to be fair you really can't have a fair trial in a criminal case if one side has all the
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marbles. we learned that as kids, right? and we understand that as just a principle of justice, that you cannot have a fair contest, you cannot have the jury do its work if one side can decide what to present. and this is a reality that is often sort of pushed in the background or overlooked, and the report -- this report, which is a very important report, i think is well worth reading and considering and taking into account, but to me it's not a surprise at all because this is the nature of brady violations. once evidence has not been presented to the defense and doesn't come in and you get a conviction, all of the momentum of the process is to uphold the
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convicti conviction. you have then had an expensive trial, you spent judicial time, you have taken 12 or 14 or 16 people from the community depending on how large the jury panel is and kept them there for days and sometimes weeks on end, and they have come up with a judgment that this person is guilty, and all of the incentives we have in our system, all of the rules that we have before conviction that presumes innocence, gives rise to the defense, all those things are reversed. the inertia is the judicial instinct is to preserve the jury's verdict, and this is a good thing in many ways because, after all, we in america believe in juries. we believe that when a group of people from the community are drawn and they make a decision
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about guilt or innocence, that really has significant standing. that is something that ought not to be likely set aside. but i would suggest that faith in the jury requires more than that. it requires not simply respecting the jury's verdict, but also respecting the jury enough to present them with evidence that points to both guilt and innocence if there is such evidence. and part of what goes on in cases where -- and this has been discussed by professor rodolfo and other speakers today. what happens in criminal cases -- in most criminal cases prosecutors are not bad people by and large. most of the ones i have seen have been quite honorable and very fair and want to do a good job, but once the investigation starts focusing on a single individual or a group of individuals and they have a
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theory of the case, they simply stop looking for evidence pointing the other way. they become desensitized to evidence that might prove the guilt of somebody else or prove the innocence or dispute the guilt of the person that's being accused. they put blinders on, and these are not evil people. these are not people who want to convict somebody who is guilty. they want to convict somebody who is guilty. they don't want to convict somebody who is innocent. they believe this person is guilty, and, therefore, they look at the evidence with this filter in mind. so i believe that putting this burden on prosecutors to come up with evidence that both is exculpatory and is material i think just puts an impossible burden. it's just not their job. they're advocates. they want to win.
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they do want to do justice but they believe doing justice is by convicting the person or persons they believe is guilty. so i think many of the suggestions made here for reform have been welcome, and i think it would be a step in the right direction. the fairness in evidence and disclosure act is a good idea and should have been passed before the debacle of the stevens prosecution which not enough can be said about how bad that situation was, but it's not enough because the statute if passed would still put on prosecutors the responsibility to winnow out evidence that they believe is exculpatory. and once again as professor rodolfo pointing out, at that point this is not an adversarial process. there is no one telling the prosecutor look at this from the
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perspective of the evidence. look at this piece of evidence that looks innocuous to you, here is what a good defense lawyer could do with it. it's not there. i would favor and again i'm speaking only for myself, i should and i'm speaking for myself, not my court reporter or anybody else, but i have served as a court of appeals judge. i do district court trials. i have done criminal trials. i have taken jury verdict and con vicked people in bench trials. i have served criminal juries. i have been in the process. i know what a little bit of evidence, just one piece of evidence that makes it insignificant can do when you're sitting around a table with that with 11 other people and you're dis cussing the case. one piece of evidence can flip the discussion. my view is what's really needed,
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if we want to implement brady is to have an open disclosure policy. if it is a prosecutor's file it ought to be presented to the defense. subject to national security. which must be submitted to the judge. this has been tried, i believe, in north carolina in the lacrosse case. it was tried in the great state of texas. i think it is well worth considering on a nationwide basis in the federal system. if i have a couple of more minutes let me talk about the other victims of the brady
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violations. ones we have heard little about but we think we need to think seriously about. any time an innocent person is convicted it means the criminal remains at large. every time you commit somebody to whont do the crime it means the person who did the crime is still out there and can do it again. as an example let me give the case of michael morton who was convicted for the 1986 killing and beating of his own wife. he served 25 years in prison because the police focused on him. it was easy. it was his own wife.
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because the prosecutor, a man by the name of ken anderson lied to a judge and lied about exculpatory evidence he had. years later over the vigorous objections of the prosecutor who succeeded ken anderson, john bradley. these people ought to be ashamed of themselves. they ought to feel ashamed in the community. ken anderson went from being a district attorney and became a judge. then for having lied in court oh and cost a man 25 years in
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prison served five yearses in jail. lost his license. i'm sorry, did i say five years? excuse me. five days in jail. never apologized and said, i'm sorry. i feel responsible for having cost another human being 25 years in prison. he can obviously sleep well with that on his conscience. john bradley who stone walled for six years to keep, he said he made the right decision given the facts available to him. shameful.
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they ought to be ashamed for having participated in the justice system and committed these crimes and misdeeds. the other victims are people out oh there who are victimized by the criminals who aren't caught and jailed because the police and prosecutors convicted the wrong man. in the case of morton, somebody by the name of ken norwood was convicted of mrs. morton's killing. he was also charged, and i am going to be careful what i say because he's not been convicted of anything. he's pled not guilty. i respect that i will not prejudge it in any way.
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but there is now evidence that he committed another crime in 1988. two years after the morton crime. perhaps we can think about the possibility that had the police not focused on morton. thad they disclosed evidence of innocence. that maybe the police would have looked at the evidence they had, examined them more carefully. maybe focused on the person we now know is the real killer in the case which is ken norwood. and perhaps the crime involving the other victim, debra baker, would be alive today. this happened again and again in situations across the country where somebody gets convict ed
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and it's the wrong person. let me leave you with a final thought. dna has been quite a boon in many ways. we have had a common law system where we present evidence. we have with guilt beyond a reasonable doubt. we are taught as lawyers and believe as a society that that does justice. we say it is better for nine guilty men to walk free or ten guilty men to walk free than for one innocent person to be convicted.
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but we have no evidence that's what's happening at all. it's faith, religion. we have no proof and haven't had proof as to what happens is that few or any or no innocent people are convicted. this is a rare glimpse into the process. it lets us go back and look at past convictions obtained before dna was a factor and lets us find people we now know didn't do it. that should give us insight as to what went wrong in the process. why did these people get convicted? the window will close. nobody will be convicted again where the evidence is exculpatory. this is a rare opportunity to go
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back and recalibrate our criminal justice system in light of hard evidence that really there are people being put away who didn't do it. this is a sobering thought. it should shake us all to the roots who are involved in criminal justice to think that, in fact in facts our system, the best criminal justice system in the world that gives us guilt beyond a reasonable doubt and lets ten guilty men walk free rather than one innocent person be convicted that we are actually routinely convicting people who aren't guilty. it seems to me that is a challenge we must take seriously. we must look at cases where there are exonerations by dna evidence. and we reverse engineer them. the spectacle that happened in the morton case where they have
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the evidence and it took six years to obtain an order allowing test iing opposed toot and nail by the prosecutor's office. that should not happen. a small percentage of cases with dna evidence, testing should be routine. whether there was a time or a guilty plea. we all know people plead guilty all the time and turn out to be innocent. they say, we are not testing for dna evidence. completely unjustifiable. the people who need to do it, the legislature would be good. but judgeses have to do it. in michael morton's case, no dna test happened until an ape lat
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panel ordered it done. that broke loose the flood gates. not only did it free morton, but it also put ken norwood behind bars for his conviction. it seems to me there is no moral or legal justification for prosecutors to oppose dna testing. any who do it should be shamed for their doing so. it seems this is something the prosecutor should welcome. if they convict the wrong person they should be grateful for the opportunity to set the record straight, free an innocent person and then go find the guilty one. thank you very much. >> thank you, judge. we are going to have time for questions now. i just want to follow up with what the judge just said by, of
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course, all of the great lessons we can learn from dna, we have to learn. i just want to under score in all the cases without biological evidence which includes virtually every single case in which the question of guilt or innocence turns on intent, it's all the more critical that this favorable evidence be put into the hands of those people who we are respecting and who we are asking to make these decisions. so i want to lead off with a quick question which i want to put to todd to help con oh textualize the report. this was a randomized study of a number of cases, federal cases but it actually involves state cases. can you explain that for those who need the context to understand that? >> so the study included a random sample of 1,497 decisions
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issued by courts from august 1, 2007 to july 2012. the procedural posture of the cases included federal appeals, post trial motions and habeas petitions. while the federal appeals and post trial motions were limiteded to federally originated cases habeas petitions can be in state or federal courts. before a petitioner can file in a federal court all state options must be exhausted first. the state originated decisions we saw the study were exclusively habeas petitions and they were now seeking a remedy in state court. the over well ing majority of decisions in in the study were habeas petitions and appeal s. the fact that we have both
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federal and state originated decisions in this study means the trends we see operating in the study sample are by no means limited to just federal cases. >> of course it means those folks who were litigating initially in the state case never got relief on the state side before it got to the federal court. i'd like to direct a question and ask for the purpose of this question to look at it from your defense lawyer perspective. one of the really astonishing findings was that in '64 out of 65 cases with late disclosure there was no relief granted. when you have that kind of case law you have lawyers deciding not even to try to litigate late disclosure. anybody that's tried a reasonable number of cases is probably routinely encountered the problem of late disclosure. i wonder if you could explain
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why late disclosure is not a substitute for timely disclosure. in other words from the defense perspective why is it important to get this information in a timely way? >> sure. obviously it's critical to anybody who's tried to prepare anything that the ingredients to the thing you are trying to prepare are there before you try to create it. putting on a defense is the same. you need information in order to investigate in advance of the trial. you need to follow up on the information. and to develop your defense. you need to figure out what theory of defense you will have. you can't do it without the information to evaluate the strength and weak nesses of the case. if you get the information into a trial or on the eve of trial whens i could have been disclosed you are hand capped to
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do those things. timely disclosure the critical. >> i would encourage anyone with questions to line up at the mic. i want to direct a question to you, judge. i'm going to take advantage of my opportunity. you said the panel's decision, and i quote, effectively announce that is the prosecution need not produce exculpatory or impeaching evidence so long as it is possible the defendant would have been convicted anyway. of course you were looking at major impeachment evidence of a key witness that was never disclosed. the real loser is.
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my fundamental question is given that, what's the reluctance that courts have to reverse the conditions. isn't it likely if there were a pattern of reversals that would be the best palliative imaginable? >> i think that reversals would be a good start. we operate under the standard. it's one of those steps in the process we need to take. whether something is material. whether something is prejudicial is a question entirely of judgment. if you look at the situation and consider the guy is probably guilty. the jury found him guilty.
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certainly the ones we see on appeal. they have been found guiltiment so there is a great deal of inertia. for reasons i find it hard to explain, most judges are reluctant to use a case as an example as a way of a teaching opportunity for future cases. i don't share that view but these are fine colleagues with equal or better experience to mine. more years. maybe they are right and i'm wrong. to me it's obvious that if you create -- maybe it's my economics background. but it seems obvious if you reward stone walling you get
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more. no two ways about it. >> i will ask one of the authors to respond to the question, whichever of you wants to jump in. the sample cases were randomly selected. by chance you reviewed two cases that involved undisclosed information that contained the same central witness as in the prosecution of senator stevens. a witness about whom the government in that case failed to disclose prior conduct that directly affected his credibility and similar nondisclosure in these other cases. i will ask one of you to comment on what you learned from studying the cases of peter and victor. >> i will take this question. in your report on page 16 and 17 there is a decision comparison of the two decisions. while the study sample was random we happened to end up with a district court decision in one of the cases and a ninth
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circuit court of appeals decision in another. we got to review them at different stages though they took the same path. the witness at issue here was the same witness in the stevenss case. in that case the department of justice ultimately decided to drop the prosecution yet we had two defendants with the key government witness forced to pursue an appeal up to the circuit. unlike stevens because because of less press they got different treatment. not only is the -- you have identical facts in different courts coming out differently. you see the disparate treatment
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under brady. you could be a defendant in one district. maybe the prosecutors say, okay, fine. we'll lose if we keep letting you challenge this. in another district they are just going to keep pushing it. that's what the decision shows. it's completely unfair. >> thanks. >> one thing that i don't know if i don't know if she mentioned this but all three cases involve essentially the same cases which were public corruption charges. contexts were with similar. >> >> question from the audience. >> thank you for this important information and for the suggestions that is you put forward. i would like to ask the judge, with your open file system do you see any problems where there is a bechnch trial. how would you benefit those if you can see anybody. if i can ask, why isn't a
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continuance a good enough remedy for late disclosure? >> the problem of bench trials applieses across the board . >> i don't see it as a problem. the reality is most of the cases are jury trials. i can't emphasize enough the importance of judicial intervention, judicial supervision. what happened, the difference between what happened here and in the #th circuit case is the district judge. solomon took it seriously. you would think, you would think
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that once there is a disclosure as happened in the stevens case where somebody on the prosecution team blew the whistle. i mean, said they have been withholding evidence. you would think the justice department would slink away in shame and withdraw the prosecution or move the government for setting aside the conviction. they fought it tooth and nail. . what happened was judge solomon who is an excellent judge with a sense of honor, duty and the constitution. he put down his foot and said, no, we are going to look into this. that was the difference n. the ninth circuit it took getting up to the court of appeals.
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you cannot get around the need for judicial supervision. or oh under state the importance of judges taking this seriously. if judges take it seriously, prosecutors will take it seriously. >> part two of the question . on the continuance issue, why isn't it good enough when it is a late disclosure? >> it could be and the minimum thing that at the trial level a court should do in that situation is to assess whether a continuance would help and certainly could be lenient in that situation in affording defense counsel time to respond. but there are circumstances in which the defense made certain decisions it's hard to back away from and it's too far down the track. if opening statements have been
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made and the like, it comes late in the day. there is a big investment in the criminal process. try to salvage it. fairness really does require a hard assessment as to whether an error by the prosecution to disclose too life creates a problem. the message will be sent that there will be active superintendents. i do think that brings about a process and fors prosecutorses to do their duty which is what this is about. >> i think it reflects this is really a trial tactic on the
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part of prosecutors. that's the bottom line. >> we saw quite a few cases. one of the problems is it can disrupt the flow of the case. it can be a risk. we also saw a number of oh cases where if defense counsel failed to ask, the court assumed it wouldn't have made a difference in the case. >> thank you. next question. >> thank you very much. i want to acknowledge the judge. you were spot on when you said the prosecutor my question is interested in learning about the incentives that prosecutors have to not try to pursue further
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evidence in a case. we have seen particular cases like michael morton with a judge that could lose his license and lose his standing in the community. we saw it happen with the central park five where all of the people who prosecuted the case made their way up the chains in new york city. no one wanted to say the kids were innocent. i'm curious about the incentives and if you talk in your report and you can answers this, talked about incentives prosecutors receive in terms of prosecuting a case to the nth degree knowing this person is, in fact, probably not guilty. so inis century tifs in terms of monetary incentives to have more and more cases prosecuted coming through the office. them able to hold up a pamphlet saying look how many people i have prosecuted.
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if you discusseded that in your report. >> no. we didn't discuss it this the report. certainly if anyone wants to comment on that, feel free. >> the incentives aren't evident in the discussion of the cases which is why this is an academic report. we didn't go into anything like that. >> i do want to make it clear i don't think there are any prosecutors out there or oh indeed very, very rare. i don't think that's how it happens. they are convinced they are guilty and there is a piece of evidence that doesn't fit. goes the other way. a witness who said the guy has a beard or the guy was 6'0" and the guy is 5'3". it doesn't fit. the prosecutor says, you know, the guy is clearly guilty.
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i have this stack of es and there is a piece of evidence, nobody will believe it anyway. they want to sweep it under the rug. not to convict an innocent person but to convict a person they believe is guilty. the problem is this is their job thinking people are guilty. it is not their job to see the hole miss the cheese. they have to look at the cheese. they are there to see the guilt beyond a reasonable doubt, not the reasonable doubt that defeats guilt. they want and believe if they let this piece of evidence and hand it over to the defense lawyers they will make something of it and fool the jury into acquitting an innocent person. it shows a lack of faith in the system. it is contempt for the jury.
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the jury is us. it shows contempt for us as a society. >> president simon? >> thanks to the panelists. this is for the judge. you spoke about brady and as the report reveals it ises rare after identification of the problem that resultses in reversal. largely because the harmless error rule is a hurdle to get over. would it be -- divorced from the harmless error rule and if there is a violation it would result in reversal. this would help create an incentive for the trial courts
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and prosecutors to comply. it wouldn't just be an ape lat save. if you commit a violation you are not going to rely on the harmless error rule to escape responsibility. they have been exceedly important to add to the list. i would be surprised. it could be done legislatively. i'm not going to say if it's wise or not. certainly would create the right incentives. i think it ises better to adopt a rule that forces disclosure up
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front. at a time when the jury hasn't been empanelled. there is no judgment. judicial time has not been wasted. and the adversary process in which we believe give the evidence for the prosecution to give it to the defense and let the jury decide. if it's good, bad, this is why we have lawyers and that's why we have trials. creating another structural error that's beyond the reach of harmless error analysis, that's probably a bridge too farer for me. i certainly have no authority to adopt anything like that. maybe the supreme court. >> thank you. >> fairness and disclosure of evidence act establishes a standard, one of the provisions, i believe, is harmless beyond a
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reasonable doubt is the standard that ape la that ape lape lat courts should when reviewing such claims. >> we have time for two more questions. i think we have two more questioners. that's perfect. >> thank you very much for your panel and the important work you did in this amazing report. i guess i'm going to ask this on behalf of all the solo cja panel lawyers out there. if 2014 we are faced with cases of 500 gigabytes of information, cell phone towers, gps tracking, thousands and thousands and thousands of pages of documents. so even if you have an open policy and you get from the government all of this discovery on one ter bite of hard drive and you have a very short period of time to file your motions, what do you do?
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how do we prevent the material from being disclosed under those difficult circumstances. >> who wants a shot at that? the gist is if the government doesn't affirmatively identify it and they can say we gave it to you. it was there. you don't find it. how do we deal with that. do you want a shot at that. >> i think it is a big challenge. that's the flip side of any sort of open discovery or open file discovery. it puts it is burden on the person receiving the material to figure out what's in there. it is a good question. i think there is a flip of it. this doesn't answer the question. i do think it is an important perspective on the challenges which is that very data point creates challenges for the prosecution as well. one of the challenges that's presented by the enormous volume of information that can be collected in a case by investigative agents is that it is very hard to review it all,
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consider it all, think about it all. prosecutors like any of us trying to get a job done are making decisions about what to review and when they have enough and can stop looking at it. part of the problem isn't even cynical explanation being given. which i think is true in some cases. sometimes mistakes come because the material isn't discovered, reviewed, considered because the prosecutors don't have type. it's the flip of what you are talking about. it ises a serious issue. we are all drowning in data. >> it is a needle in a hay stack. how do you find one piece of evidence? so it's a challenge until there is a rule change, so many of us are struggling because we know when you read the rob kerry book and find you have the best lawyers in the country filing these motions for discovery and motions to compel, et cetera, what do we do?
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how do we combat that? it's a difficult time. >> i want to point out an index should never be enough. there may be more information than a prosecutor has the time to discover themselveses. >> time for two more quick ones. my understanding is this is a big problem in several cases. the problem is not as serious as it first appears. once you turn data over if you don't know what's in it, anything at all could destroy the case. without knowing what's in there it seems to me criminal cases you really want the investigative reports. those aren't subject.
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the stuff that usually turns up is an investigative report. the witness said the opposite. what happened? he got a plea bargain. >> i want to thank you for your report as well. what you have done is a service to those of us who have prosecutors telling us they never see anything like brady. often don't produce it and sometimes it's discovered years later. the thing about the new technology data dump isn't to rely on the government. you have to scan, digitalize it and do your own searcheses using
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ebulient searches. the critical thing you want and anybody who practiced for any other time has had evidence from them. we reach a point where we don't know if we have the honest prosecutor who cares to do justice in a case without the adversarial role. what i want to ask is if we amended that and called it the open discovery act would you go on the hill to testify and say that's what we feed. you did say it was an epidemic. >> i can't speak for the judiciary. only the united states. if both were supported and the chief justice appointed me to speak. >> not even as an expert opinion? >> if subpoenaed by a committee of congress i would appeal.
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>> not going to claim judicial immunity. >> no. >> thank you your honor. >> okay. >> yes, sir. >> good afternoon. thank you for your report. >> my question isn't going to be as technical. the average defendant isn't mr. stevens. the average defendant is low income, minority, maybe a drug charge. the work being rolled out today, how can the person listening wrap their mind around this? how will it affect the average case where they may not see a public defender until they go to court and what's redacted in the information is a history of a police officer. now we are talking about the officers and the whole process. >> todd, take a shot at that one.
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>> sure. yeah. if you read the report we try to make it as simple as possible so that person could understand exactly what we are trying to say here . basically the findings are that there are a number of case where is favorable information is being withheld. 210 out of 620 cases are decisionsment those decisions aren't limited to michael morton-type cases or ted stevenss-type cases. the crimes in these cases run the gamut from small petty drug charges to serious murder charges. the findings speak to every single type of crime and defendant. >> the introduction of the report you will see we talked about three different cases. john thompson was the third one
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different scenarios. the key to take away p for the defendant about to get their attorney is to say, you know what, the government must disclose all favorable information. i want to make sure that my lawyer is asking for it, but not just asking for it. going to the judge and getting the judge to order it. until we can get legislation that's what the defendant should take away from this. >> in these cases where defense counsel has the least resources are the case where is it is the most important that we have the highest degree of fairness and disclosure.
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the deck is stacked in a way that it isn't anywhere else. it seems to me that the fear one has is it is exactly in that situation where scrutiny is least likely and injustice is the most likely. >> trying to give the disclosure issue context, this is a nation that has 2.1 billion people in prison and arrests 14 million people a year. how are criminal justice process unfolds and whether or not we give the accused the opportunity to know the evidence that supports their innocence, supports litigation or under mine it is truthfulness of witnesses. it's shg that has to effect
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literally millions of americans. we can talk about a case like morton which was anything but a white collar case. because of the circumstances it's a major teaching moment. we can talk about the stevenss case because it was the united states senator who was done in by a justice department of his own party. who had nothing to gain. we are dealing with a systemic problem that requires a systemic solution. i want to extend my thanks. i know how hard they work withed on di vising the methodology. trying to figure out how to make it work and produce something that can advance the public discussion. to david ogden for his general ross ti, reading, commenting on the report and writing the foreword.
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to the judge as well. thank you very much. [ applause ] today we look at the national sales tax with the chair of the republican studile committee and advocates of the tax. live at 3:30 p.m. eastern from the heritage foundation here on c-span3. tomorrow at 1:00 eastern time the head of the centers for disease control dr. thomas frieden will provide an ebola response p update. jeffrey gould is from the university of nebraska medical center where a patient died
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today. he'll testify before a house sub. committee. live coverage at 1:00 p.m. eastern on c-span3. president obama has returned to the u.s. after his trip to asia. tomorrow he'll hold an ambassador credentialing ceremony. on wednesday the president hosts connected to the future on schools and the transition to digital learningment on thursday the president will award the national medal of science and the national medal of technology and innovation awards. >> thanks for your comments about our programming. here are a few received about washington journal. >> i must say washington journal first thing in the morning, absolutely wonderful. very informative. i really appreciate you guys letting people such as myself
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actually call in and sometimes talk to people running our country. and our world. >> i would like to make a suggestion that instead of dividing the country between democrats and, republicans, independents, c-span should ask the question and have callers either call and agree or disagree. this would save a lot of partisanship. let the ideas get out there, not the political division. >> thank you, thank you. this morning, today was the best show i have seen. that's what we need. please have more shows like the one today. having a democrat and a republican on there so people can ask them questions about what they are going to do. this was a great show. we need them to explain what the
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policies are and how they differ. give their reasons and their reasons were just like mine. we need to know how they think, how they vote and how we should vote. have one every day with their ideas, policies and what they plan to do for the people. have us call in and question them. thank you so much. >> continue to let us know what you think about the programs you are watching at 202-626-3400. e-mail us at or send us a tweet at @cspan, # comments. join the conversation. like us on facebook. follow us on twitter. next, a look at whether the obama administration over reached in ex tending tax credits and subsidies for health care exchanges and lawsuits against the health care law. the supreme court will hear a case this term on the issue.
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lower courts have issued conflicting rulings. so now that the first panel has adequately filled us in on the right and wrong of the case and whether or not the court is going to take it and what's going to happen with it, we are going to look at in this panel what it would mean if it succeeded. my name is laurie montgomery. i'm also a reporter at "the washington post," likely colleague bob barnes. my connection with this subject is i covered the health care law, and to be honest with you
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the chaos of those days makes it seem a little crazy that we're sitting here parsing what they meant, because what they meant was to get it passed by all means necessary. our speakers on the second panel are going to start off with the president of health policy and strategy associates. bob had 20 years of experience in the insurance industry, serving as chief operator for nine of those years before beginning his business in 1992. he has participated extensively in the nation's health care debate and has been a regular contributor on the issue for a number of national television, radio networks as well as major newspapers and trade journals. his marketplace practice concentrates on how employers, provider, health insurance companies, hmos and blue cross plans come to grips with market and policy change. bob will discuss the potential economic impacts of the halbig case on the nation's insurance markets. next up will be len nicholls, director of the center for
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health policy research and ethics and a professor of health policy at george mason university. he's been intimately involved in health reform debate, policy development and communication with the media and policymakers for over 20 years, since serving as senior adviser for health policy at the office of management and budget in the clinton administration. since that time, he has testified frequently before congress and state legislatures. len has been a principal research institute at the urban institute, vice president of the center for studying health system change, and director of the health policy program at the new america foundation. as he has come to focus his research more on payment and delivery reform, len has been an adviser to the center for medicare and medicaid
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information at cms and is now the principal investigator on a five-year evaluation of care-first patient-centered medical home program and a three-year robert wood johnson project testing how payment reforms might be used to reduce health disparities. len is going to talk about the implications of a halbig victory for policymakers as well as for average americans. third will be tom miller. he's a resident fellow at the american enterprise institute where he studies health care policy including regulatory barriers to choice and competition, health care cost factors, and market-based alternatives to the affordable care act. a former senior health economist for joint economic committee in congress, miller was previously a trial attorney, a journalist, a sports broadcaster. he once thought about exploring stand-up comedy as well but soon realized that describing government health policy drew
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more laughs. he is the co-author of the bestseller "why obamacare is wrong for america" and author of "when obamacare fails: the playbook for market-based reform." tom is going to focus on how congress and state legislatures might respond to a halbig victory. finally, michael cannon has been described by my publication as an influential health care wonk at the libertarian cato institute where he is the director of health policy studies. along with jonathan adler, he wrote the leading scholarly treatment of the issues before us today, "taxation without representation: the illegal irs rule to expand tax credits under the ppaca," published in health matrix journal of law medicine. this means, of course, that he has no opinion on how the courts should rule in this case. his presentation will focus on the dueling narratives of the halbig case. are the plaintiffs being obstructionist and nitpick i can or is the administration committing a staggering violation of law? so we're going to start out with bob. >> thanks, laurie. it's great to be here. thank you, michael, for inviting me. my job today is to talk about the what-if.
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what if halbig is affirmed and what impact would that have on the marketplace? and to cut to the chase, it would be devastating, catastrophic. you know, we talk about the nuclear option sometimes in public policy, but i don't think any of us have ever seen the nuclear option. halbig is the nuclear option for the individual health insurance market in these 36 states. in the other state where is the states are running the exchanges there wouldn't be a direct impact but the impact on these 36 states would be devastating. 86% of those enrolled are on subsidy and the people on subsidy are generally low-income people. what would happen is the minute people lost their subsidies presumably the minute the supreme court ruled in favor of halbig, the next month there are no subsidies. so these people simply would not
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be able to afford by and large to continue their health insurance because this group is so disproportionately low income. obamacare works pretty well for people that are at low-income levels. they get about all their premium paid. their deductibles and co-pays are cut dramatically. as a result, obamacare has disproportionately enrolled people who are lower income. people who are middle class or lower class. it's not working as smoothly. obamacare has only enrolled one out of three subsidy-eligible people. for a program to work like this the rule of thumb in the insurance markets is you have to get about 75% of the people enrolled. so obamacare is far from having cleared the tower. and right in the middle of this three-year open enrollment if the courts were to rule to affirm halbig, you would take a
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market that is not able to stand on its own right now and devastate it even from that point, much less not let it get to where it needs to be. now, it's important to understand that in the states that are running their exchanges they may have a shot at making this sustainable. but that would clearly not be the case in these 36 states. now, another factor here is that the affordable care act's reinsurance provisions for the insurance companies pretty much picks up order of magnitude 80% to 90% of their losses. it's a very complex system. i can't give you the exact number. it depend on a number of things. but 80% of 90% of an insurance company's losses are sustained by the taxpayer, by the federal government in 2014, 2015, and
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2016. if a halbig ruling were to come down during this peer it would be immediate devastation for the insurance companies because of that. now, in may the administration claimed 5.4 million enrollments in the federal exchanges. 86% subsidy eligible. based upon the adjustment to 7.3 million that they came up with a few weeks ago, we've got close to 4 million people, will have about 4 million people at year end in the exchanges under subsidy. the insurance companies are telling me that the enrollment is melting at a rate of about 3% a month, which is much more than we see in the normal marketplace. in the normal marketplace you'd expect the people coming on to about offset the people leaving nap's not the case. in obamacare it's be shrinking. then of course we'll have the 2015 enrollments. we don't know what that's going to be. the congressional budget office has said obamacare will be at 13 million people at the end of 2015. they're at about 6.5 million now or will be at year end with the melting of the enrollment. so the obama administration has before it the task of about doubling the number of people covered in the insurance exchange base the end of the 2015 enrollment to stay on the cbo estimate track.
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by the way, that's probably a pretty good track for it being sustainable. i think that obamacare has to have about 15 million people in the exchanges for this first to be confident this will be sustainable and they're at about 6.5 million now. now, we don't know exactly what the income breakdown of people is in obamacare. we don't have that data. but the administration a few months ago told us that the average subsidy people receiving was very high. and so if the average subsidy they're receive organize the net premium they're paying is very low, it tells you right there the bias is clearly toward low-income people who need these subsidies, and if they don't get these subsidies wouldn't be able to continue. so you would almost certainly have dramatic disenrollment for the insurance plans at the moment the subsidies ceased. but not -- but wouldn't immediately impact negatively the insurance companies because of the reinsurance provisions. and you might recall that the obama administration took the cap off the reinsurance provisions just a few months ago, another controversial move the might be subject to some court tests, but they took the cap off. so basically the insurance companies have an open-ended
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subsidy here. the affordable care act's risk program comes in three parts. a revenue-neutral risk-adjustment system that doesn't mean much in terms of this issue, but a claim reinsurance program and then a risk program that sustains the losses on behalf of the insurance companies. any claim in 2015, every claim between $70,000 and $250,000 is completely reinsured by the federal government. the carrier is on the hook for the first $70,000. the layer that comes after that is the catchall. it's a bit complicated but what it says is after we've sustained all of the high claim costs the government has on behalf of the insurance companies we'll make sure that your medical loss ratio doesn't exceed a certain point. again, it's very complicated, but the bottom line is it will -- if the claims losses are really bad, this provision alone will pick up about 75% of any
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losses the insurance company sustains after the federal government picks up the claims between $70,000 and $250,000. so when you net all these things together, the reinsurance provisions are probably going to cover 80% to 90% of the losses for the insurance companies. for a publicly -- big publicly traded company or a big blue cross plan, this means any losses that they would sustain would be really minor and fairly immaterial. but you've got a number of obamacare co-ops out there that just got started under obamacare. in iowa, nebraska, and maine and montana, an individual co-op has about 50% of market share in each of these states. they would be protected by the reinsurance provisions as well. but the problem is they'd lose most of their enrollment. and any insurance by is challenged by two things -- one, having too many claims, the other not having enough people covered to cover your expenses. if these co-ops were to lose the subsidized population from the business, they would not be able to sustain themselves because of
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the expense problems they would run into. they would simply lose their business. it wouldn't matter that the government was reinsuring their medical loss ratio program. they'd have terrific expense problems and probably would go government gave them. woe would have the market imploding. as soon as the subsidies end, people would not be able to pay the premium. i took the administration and they talked about and adjusted for 86% and looked at what the federal government said they enrolled in each exchange and here are the states. the state with the asterisk are medicaid expansion states. i noted that because it seems they would be most likely to want to try to continue state
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exchanges. they accepted the medicaid expansion. there would be enormous imperative for the states to have to do something. the insurance companies would be waiting to see what the states would do. you would have 283,000 people in north carolina and lose their subsidies. the vast majority would have to drop their coverage. if they double in 2014, that could approach 2 million people in florida. depending on how many people enrolled. it could be a million in 2015 if the administration stays on the track for enrollment. that would be enormous. they would be saying what are the states going to do.
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how a ruling came down, they tend to make their ruling before the july break. we would be looking at the rest of the year. there is a provision of the new health plan agreement that said the carrier can get out if the subsidies go away. only subject to state and federal law. it is still operative and said that a carrier can't cancel individuals. it can only canal cell a class of business. this is the obamacare business and the exchanges. the silver and gold plans. that's the class of business. you can't cancel only the people who lose subsidies if they want to get out. they have to cancel everybody. if they cancel all of the businesses, hipaa said they
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can't come back into the market for five years. three months, 90 days. you don't pay your insurance, you are canceled at the end of the month. affordable care act said they have to keep them for 90 days. they fall back on the provisions and look to see what the state is going to do. if they are going to enact the state exchange, they will gut it out. if it doesn't look like they
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will do the exchange, then they are likely to get out. they may have to get out of the entire market. this would impact the non-exchange market as well. if this falls apart, the off exchange market is as unviable as the exchange market. can they move to create a state exchange. they wrote a piece in health affairs recently and he pretty much pointed out that for a state to immediately create a state exchange is not as symptomatic. you have the political problem with the texas legislature vote to do that. if they voted to do that, it would likely take many months to set up an exchange as creating a set of state exchange and contracting with the federal government as the venter to continue doing the exchange. that would be the simplest way to do it. that would take many months to
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do to say this was a ka cast officery in terms of the insurance market does not under state it r, that would create a problem for the legislatures in each of the states. the debate would move on to who broke it? folks, it would be broken. thanks. >> thanks for that cheery assessment. >> how do i get this? not tom. whatever happened. let's not do that.
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>> if the wrong people went in court, it's worth taking at least three minutes and assessing how the aca is doing already. that will play into how this
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conversation goes. it seems to me that you need to judge the aca on four metrics. coverage, cost, growth, and there three dimentions to cost growth. national health spending and federal spending and household spending. and the things people care about, quality and health. on coverage, you have got to say although shockingly giving the roll of the website went down. i agree with bob completely. the real test is what happened in 2o 15. the people who signed up the first year are probably the people who knew they had a health condition. it will be amazing if they get as many people.
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if the reduction in uninsured occurred despite the fact that half the states did not expand as they could have. careful people know it started coming down before the affordable care act. they cannot claim most of the responsibility here, but i think you could say and it's interesting and i think bob knows this, if you go out to the system and talk to the people running it, they have focused on reduction any way they have not before. and it has been picked up and amplified by the private sector that you see the last years of more or less constant growth rate way below historical norms. the stability is what we are talking about here.
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that's a success people hope to hang on to. what matters is what's going in washington. this is the forecast for total health spending by the federal government in 2020. medicaid before the aca. the second is the forecast of spending post aca and preroberts. they assumed it would be full speed and all that stuff. we would be spending a couple hundred million more than base line. the interesting thing is base line. what that shows you is that even taking into account the enrollment expansions that they expect by 2020, the total
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federal spend will be less than it was projected to be before the aca passed. the thing that matters is what do households pay. what we have is an incomplete and all we have got picture of how premiums are changing in 2015. now bob was too kind to say in 2014, basically health plan had to make a fairly uneducated guess about the risk pools they would get and had to make the guesses based upon incomplete knowledge of what they were like. we know what they were like and we don't know which will show up. the expectation is of course the sicker ones will show up. the 2014 premiums were probably low give


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